slightly OT, but:

Classical Natural Law theory holds that slavery and torture (in an unambiguous sense of that term) are legitimate. Why on earth would anybody want to take it seriously?

shippi:

There are several problems with your question:

(1) "Slavery" has different meanings. For example, it could mean chattel slavery, or the sort of slavery that involves kidnapping people and selling them (as in the African slave trade). The classical natural law tradition did NOT hold that these practices were legitimate; on the contrary, they have consistently been condemned by thinkers in that tradition. On the other hand, "slavery" could mean merely temporary servitude on the part of a debtor, or servitude on the part of a criminal, or on the part of someone captured in a just war, where this servitude fell far short of the sort of chattel slavery people usually have in mind today when they hear the word "slavery." (For example, no natural law theorist ever held that you could do whatever you liked to a slave.) This sort of thing was seen as in principle legitimate by thinkers in the tradition, the reasoning being that if it was e.g. legitimate to kill a criminal or enemy soldier, then it could be legitimate to give him a lesser punishment like putting him to work. But many of these thinkers also regarded the existence of such servitude as posing serious moral hazards, which is why the consensus formed that it would be better to get rid of it. Hence, while parts of it survive, in a sense, to this day even where "slavery" as normally understood has been abolished -- we sometimes make convicted felons do work during their time in prison, after all -- other parts have happily disappeared (e.g. making debtors work for those to whom they are indebted). So your objection is really based on a simplistic and sensationalistic characterization of what thinkers in the tradition actually said.

(2) Lots of other moral theories can and have been used to justify the practices you name. For example, utilitarianism can, notoriously, be used to try to justify almost anything if it maximizes overall preference satisfaction; Locke's theory of rights allowed for the taking of soldiers captured in a just war as slaves; and so forth. Would you therefore think it suffices to refute such views to ask "Why on earth would anybody want to take utilitarianism, natural rights theory, etc. seriously?"

(3) Torture is a trickier question. Part of the reason is that most of the people who talk about it these days don't bother defining it very carefully. Another part of the reason, though, is that, to my knowledge anyway, it just isn't dealt with in the tradition as much as other topics (including capital punishment and slavery) are. Perhaps you are confusing e.g. what some people did during the Inquisition with what natural law theorists said was legitimate. But the two are not always identical.

This is not to say that torture in _some_ sense of the term was not regarded as legitimate, in some circumstnaces, by some natural law theorists in the past (just as it is obviously regarded by many people today as legitimate in some circumstances -- there is hardly a consensus against it as there is a consensus against slavery). But we need to keep in mind that (a) no one in the natural law tradition would ever have held that just _any_ form of torture was legitimate, and (b) as with the "involuntary servitude" type of slavery, it is consistent with traditional natural law theory to hold that there are moral hazards to torture (e.g. what it does to the torturer) that make it better to keep from using it. A rapist may deserve to have his private parts doused with scalding water (or whatever), but it isn't a good thing for some guy to have as his job that he spends hours every day of his life scalding people's private parts, even if they deserve it.

Obviously, this raises further questions, such as:

1. If torture, and the sort of slavery traditional natural law theorists countenanced, could nevertheless be regarded by them as involving moral hazards that justified abolishing them, couldn't one say the same thing about capital punishment?

My answer is that in principle one could, though I do not believe the cases are in fact relevantly similar, partly because executing someone is just a relatively quick affair compared to torturing him or keeping him in servitude. In any case, this doesn't affect the question I was primarily addressing in my post, which is whether capital punishment could be justified _in principle_ as a means of securing retributive justice.

2. Hasn't Catholic Church in recent years made statements against torture?

Here again the answer is yes, but it isn't clear what exactly that shows, because the Church has (a) given no guidance as to precisely what counts as "torture," and (b) said nothing about whether torture is always and inherently immoral in principle, or is rather only morally hazardous enough that it's better never to use it at all.

(Before anyone takes the conversation in an irrelevant direction, though, I want to make it clear that this is NOT meant to imply any stand one way or another about any current controversies (regarding Gitmo, etc.) I am simply making the point that there are important moral and conceptual issues here that require careful thought.)

Finally, one reason someone should take the theory seriously is that it certainly seems to follow from a combination of theses that are eminently defensible from a philosophcial point of view (e.g. theism, realism about form, etc.) But that's another subject.

Ed,

Enjoyable post, as usual. But here's a question. Suppose someone of the old natural law theory believed that in principle the death penalty was legitimate but was also seriously concerned about the salvation of all people. This concern leads this particular person to attempt to witness to people on death row. And sometimes the people she works with are put to death when, at least, she had hoped they had a chance of coming to Christ.

So she opposes the death penalty on the grounds that people should be allowed to live because (like most orthodox Christians believe) once a person dies his salvation is fixed. And she wants these men, at least the ones who aren't so obviously hard hearted, to have a chance to repent. Suppose she says, "We can't ever give up hope that they [murderers] can be redeemed. And maybe, one day, as they live through years of psychic division, they will realize that through Christ there is another way."

What would you say to such a person?

Also, I take it that your view presupposes that rights are alienable. And by that I mean that when you violate a a right you lose that same right yourself. Knowing your work, I know that you think of rights as a kind of instrumental means to the good. But suppose one saw rights as inalienable. It seems that one might then have a case against the death penalty because one doesn't lose any rights when one commits a crime. What would you say to a person who thought this? Is there a case for the death penalty even if rights are inalienable? I'm aware that Locke seemed to believe both in the death penalty and in inalienability of rights, but there seems to be a tension there.

I suppose you might reject this way of thinking about inalienability out of hand because it seems to entail that in general legal punishment is intrinsically unjust and that seems to do great damage to our moral intuitions. I'm not sure that it does myself, as one might think that forcing a person to engage in a restitutionary practice (which is presumably consistent with inalienable rights because you don't *lose* rights at any point) may be punishment enough.

To this you might respond that you can't restore someone who is dead. And while this is true, service to the victim's family or the community might be in order as a kind of attempt at restitution. Perhaps this is not enough. But I just wanted to outline a bit of the logical space of the worry I'm raising here so you don't have to waste your time with miscellany.

Frankly, Edward, I find several of your arguments for capital punishment rather frightening. Your main argument seems to be that, if we take proportionality as a fundamental principle of justice, then at some point the offense must get serious enough so that a punishment of death is required by justice. The scary thing here is that this arguments seems like it could justify any sort of barbarity as punishment. I don't see any sign of an upper bound on the punishments that could be promoted on this grounds. I think that you are begging the question when you take the issue of cruel and unusual punishment off the table with the claim that if justice demands it then it must not count as cruel, since I think that the whole point of the principle against cruel punishment is that there should be a cap on the harshness of punishment. There are certain things you just don't do to a person. Where the argument becomes really frightening is with the aside that "if a person can deserve Hell, he can surely deserve a few seconds in the electric chair." Any punishment that we can dole out on Earth pales in comparison to eternal damnation. Using this comparison to justify punishments seems to license anything at all that we might do to a person, even the most hideous torture.

I had hoped and assumed that you'd back away from these implications as soon as they were raised, but your response to shippi does little to assuage me. You treat issues like torture as tricky questions, suggesting that it may in fact be legitimate for the state to torture people (as by dousing their genitals with scalding water), not as a way to bring about some important good like saving millions of people from a ticking bomb, but as a form of retribution, punishment for something wrong that the person has done. The main argument you present against these sorts of practices, that we often should not do them because they are morally hazardous to the torturer, is unsatisfying. First of all, that is a very thin reed to use to hold back evils such as torture. Surely our highly technological society could design instruments of torturous punishment that would allow their human operators to remain physically and emotionally distant from the suffering that they inflict. More fundamentally, this argument misses the point of what is wrong about torture. Committing acts of torture threatens the character of the torturers and their community largely because it is such an awful thing to do to another human being. The problem is with the act of torture itself, not people's weakness in carrying out torture.

Is there something more that you can draw on from the Natural Law tradition to guard against these ominous implications?

Great post, Ed. I especially think you got on a roll with your discussion of giving the person dignity by giving him the death penalty. Exactly.

Brief question: Could a faithful Catholic say that in fact the previous pope _did_ deny the legitimacy of retributive capital punishment, that in his thinking he really _was_ out of step with Catholic tradition, but that this was just his "personal opinion" and wasn't authoritative and binding teaching? It always seems to me...implausible to say that he was merely making a prudential claim, and I think a hard-headed Catholic should be disturbed to find himself saying that he _has_ to interpret the Pope that way.

I do share some of the concerns expressed here about what one might call "crude proportionalism" and its implications for torture. Although of course the causing of bodily pain is on a continuum, my own opinion is that this does not create a "beard" problem. There really are things that obviously one just should never do to anyone, however evil he is.

But I do not see why anyone would think this judgment applies to taking his life per se. To me it is obvious as a sort of a priori ethical truth that barbaric torture is far _worse_ than humanely-administered capital punishment, so where's the beef? We can draw the line at capital punishment as the worst thing we can do to a person--admitting that this is also the _best_ we can do as far as a proportional retributive punishment is concerned (especially if he has himself tortured his own victime)--and leave it at that. Nor does this seem to me an arbitrary line. But I realize that death penalty opponents do find it arbitrary. I find that puzzling.

Hi Kevin,

As you no doubt realize, my main target in the post was the sort of argument that says that capital punishment is of itself unjust and/or cannot in principle be a way of securing retributive justice. That sort of argument, in my view, is incompatible with any serious moral philosophy, for the reasons I gave. But there are other arguments against capital punishment which I think are more respectable and worthy of consideration, and the one you mention about the possibility of conversion is one of them.

I still don't buy it, though. The main reason is that the very existence of capital punishment itself serves to underline the seriousness of offenses like murder. A society with capital punishment is, all things being equal, a society in which a sense of good and evil is more robust than a society without it. (As I said in my post, hostility to capital punishment and a desire to minimize individual responsibility and transform moral questions into therapeutic ones tend to go hand in hand.) So a society in which capital punishment exists is, on balance, one in which evil men are more likely to repent, because you first have to recognize that you are an evil man (and not just someone who has made some "bad choices") before you can repent of being one. Then, of course, there is the old saw about how death concentrates the mind; at least for some people, the prospect of execution might be precisely what leads them to repentance.

Re: Locke, he did not in fact think that rights were inalienable, at least not in a strict sense. The same law of nature that in his view makes murder, suicide and selling oneself into slavery immoral -- because these things violate God's rights over us -- also allows capital punishment, because the law of nature also includes retribution. There is no tension, because the alienability of the right to life in the case of a murderer is built into the structure of the rights theory, rather than being an unsystematic extra tacked on to it. This is even more so in the case of classical natural law theory, which is much more thoroughly worked out than Locke's rather sketchy version. The very nature of rights entails both that the right to life cannot be lost by an innocent person and that it can be lost by a guilty one.

I do indeed think that your suggested way of interpreting inalienability would rule out all punishments -- especially from the libertarian point of view I assume you'd endorse. If I own my labor by virtue of being a self-owner, then I have a natural right to it. And if that right is inalienable in the sense you're suggesting, then that would mean that even someone whose rights I've violated couldn't force me to pay restitution, since that would take from me the fruits of my labor.

This is the problem with the usual attempts to criticize capital punishment on the basis of some ultra-high-falutin' interpretation of the "dignity of the person" -- they really make rights out to be so strong that punishment per se, and not just capital punishment, seems to become a violation of "human dignity." This is just a reductio ad aburdum of these views, since it undermines the whole idea of desert, and thus the very possibility of morality.

I share some of Blar's worries, but I want to go in sort of a different direction from them.

It seems as though Professor Feser accepts the following thesis: "The state is obligated to punish people as much as they deserve." One worry about this is that there are cases where it seems impossible to torture someone as much as he deserves (even if it's easy to figure out how much someone deserves). For instance, if A pre-meditatively kills B, then executing A seems like a sensible thing to do. But what if A tortures and then kills B? Presumably, torturing and killing B is the sensible thing to do (by Lex Talionis). Now, what if A tortures, rapes, and kills 10 people, a la the BTK murderer? It seems as though any punishment the state gives him is going to be less than he deserves. Indeed, it seems to be impossible to punish him as much as he deserves, at least according to Lex Talionis.

So, what should the classical retributivist do in such a case? Is only executing, and not torturing, BTK what he deserves? Surely not--surely if we could kill him ten times we would be obligated to do so (imagine he's in hell; presumably his could be something like suffering death ten times). But now it seems as though classical retributivism--which I'm explicitly connecting to Lex Talionis as its metric for determining how much to punish someone--forces upon the state an obligation it cannot discharge. So, either Lex Talionis is wrong (which could be in keeping with one reading of what Jesus meant when he said to turn the other cheek) or a view like Jeffrey Reiman's is correct: the state is not obligated to punish everyone as much as they deserve, but it's permitted to.

My guess is that you'll reject Lex Talionis. But if you do, I wonder how we should figure out what kind of punishment someone deserves.

Two other points: you write,

"executing someone is just a relatively quick affair compared to torturing him or keeping him in servitude."

Although the speed of execution is rapid, the effect it has on the psyches of executioners is long-lasting. Or so we should think if we believe The Village Voice:

http://www.villagevoice.com/news/0504,gonnerman,60415,5.html

(There's also a book written on the negative effects on executioners of carrying out the death penalty, but I can't find it right now.)

You also claimed that the medievals emphasized individual guilt, but surely they also believed in collective responsibility? (I'm thinking of this in relation to the Atonement.)

Blar,

You say you find my view "frightening," but you fail to point to any flaw in my argument for it. I have claimed that if we accept the principle that people deserve to be punished for the evil they do, and that the punishment ought to be proportional to the offense, then it follows that capital punishment can be a legitimate way of exacting justice for some offenses. Where exactly is there a flaw in this argument? Do you think that people never deserve to be punished, or that the punishment shouldn't be proportional to the offense? If so, then as I said in my post, you would thereby forsake the possibility of any genuinely moral evaluation, not to mention the possibility of a system of criminal justice per se (as opposed to some amoral system of social engineering).

Furthermore, the very principle that the punishment ought to be proportional to the offense means that my view does NOT "license anything at all that we might do to a person, even the most hideous torture." (The reference to Hell was just to make the point that at least for someone who believes the traditional Christian view, it cannot be correct to say that the death penalty is intrinsically a "violation of human dignity" etc., since Hell isn't such a violation. But that is a matter of divine and utlimate judgment, and plays no role whatsoever in answering the question of what punishments are appropriate here and now.)

Surely the reason most people think that e.g. chopping off a guy's hand for stealing a candy bar is cruel and unusual is that it just seems obviously excessive, not because we think no one can _ever_ deserve to have his hand cut off. Indeed, I think the moral intuition of most people would be that e.g. the man some years back who cut off the arms of the girl he'd molested _does_ deserve to have his own arms cut off. If we nevertheless refrain from doing this, it is not because we think the "dignity" of such a monster would be violated by our doing so, but rather because we rightly think that the moral hazards to us of carrying out such punishments are too great.

Re: the torture question, I would in fact say that there is a _stronger_ prima facie case (but only a prima facie one) for torturing a rapist than for torturing some low-level terrorist who happens to know where a bomb is. Suppose the terrorist in question is merely some flunky who never in fact carried out a terrorist act but was merely part of a terrorist network that was planning one. Would it be legitimate to pour scalding water on his genitals to get him to give up any information he had? I would say no: he just hasn't actually done anything that merits such punishment, so it would be simply unjust and immoral to do such a thing. The fact that he might have information that might help us to stop an attack is irrelevant. But a rapist might deserve such a punishment (though he wouldn't deserve just _any_ punishment, e.g. having his legs torn off or some such thing). I still would say that he should not in fact get such a punishment, because of the moral hazards to us in carrying it out, but that's a different question. The question at hand is the question of what we deserve as a matter of justice.

I don't have a worked out view on the torture debate, but I do know this much: one side (the "conservative" one) is too obsessed with purely pragmatic questions about what we might "need to do" in order to stop a terrorist attack when they should be more concened with the question of what justice allows; while the other side (the "liberal" one) is too beholden to vague and poorly thought-out rhetoric about "human dignity" and not concerned enough with careful analysis of the concepts involved or with serious argumentation. The first side is too coldly utilitarian and amoral, the other too muddle-headed and self-righteous. But that's another topic.

Hi Lydia,

Re: John Paul II, I would not be surprised if he personally was tempted to the view that capital punishment was not a legitimate way of exacting retributive justice. Of course, we can't know for sure, but it wouldn't be surprising given the kind of "personalism" he was committed to as a philosopher. But the personal philosophcial and theological views of popes are irrelevant to the question of Catholic teaching, and there have notoriously been cases of popes who privately held erroneous or even heretical views (e.g. John XXII, back in the Middle Ages). But what matters for infallibility, and for what Catholics themselves ar bound to accept, is only what a pope explicitly, publicly and in a binding fashion presents as official Catholic teaching, not what motivates him personally.

And I am sympathetic to what you say about "crude proportionalism." The view I'm describing does not require that a punishment _must_ in justice be _identical_ to the offense, but only that it be proportional -- hence several years in prison and/or hard labor might be proportional to a rape. Still, part of what is relevant here is what people strictly _deserve_, and I think there is a clear sense in which Hitler or Stalin, say, would have _deserved_ to be tortured, even if there are reasons why we should not torture anyone.

Bobcat:

You wrote: "It seems as though Professor Feser accepts the following thesis: 'The state is obligated to punish people as much as they deserve.'"

No, I do not accept that thesis, and nothing I said implies it. My argument doesn't even entail that capital punishment is required. It shows, and is intended to show, only that it is not intrinsically unjust, i.e. that it _may_ be used, not that it _has_ to be.

It is possible for both these things to be true: (a) Justice calls for X, and (b) We should nevertheless not do X. Mercy, for example, is sometimes called for, and as I've said, sometimes there are enough moral hazards in doing X that we shouldn't do it. That doesn't mean that X really is unjust after all, only that justice isn't the only moral consideration there is.

Professor Feser,

Thank you for your response. The reason why I incorrectly attributed the thesis to you that I did is because of how I interpreted the following:

"[E]ven a 'basic good' like life is something a person can in principle legitimately be deprived of. This in no way entails a denial of the 'dignity' of the person executed, contrary to what Chris seems to think. On the contrary, it affirms his dignity by treating him as a free and responsible individual who must be held accountable for what he does."

It seems to me that there are two instances of dignity involved: one having to do with the criminal, and the other having to do with his victim. If we don't appropriately punish the criminal, not only do we fail to affirm his dignity, I should think we also fail to affirm the dignity of his victim. We say, in essence, "you're too unimportant for us to right a wrong done to you."

My question is: when does an expression of mercy amount to a failure to respect either a criminal's or a victim's dignity? I take it that finding this line requires well-tuned practical judgment, but that in every case, there's always some amount of mercy compatible with respecting the criminal's and the victim's dignity?

Hello Bobcat,

I would say that mercy is largely something that it is up to the victims of crime and their families to dispense, not the state (though there might be some cases where the state can properly do so). As you say, the dignity and rights of the victim need to be taken into account, and partly for this reason it is the victim who should have the most "say" where mercy is concerned -- even if this just means saying "I forgive you and I'll pray for your soul" before the switch on the electric chair is pulled. The needs of society also need to be taken into account, and this arguably requires (as I suggested in reply to an earlier comment) that capital punishment be preserved so that a clear sense of good and evil is maintained and the "therapeutic" attitude toward crime is avoided.

Mercy is also something that is appropriate mainly in cases where the offender is repentant. An offender who shows no sorrow or regret deserves mercy even less than a repentant offender does, and should get none. He should not get a worse punishment than he deserves -- to refrain from a worse punishment is not mercy, but simple justice -- but there is no assault on his dignity if he gets what he does deserve. Indeed, it is an insult to victims and their families, and a very grave undermining of the social order and public sense of justice, for unrepentant murderers and the like to get such undeserved mercy.

One question that has not been answered as far as I can tell is whether innocence or trust lost through violence can be restored with violence. What the aggrieved party wants is what I would term "being made whole." But symmetric retribution is never going to heal their loss. Mercy and retribution both seem like insufficient answers to a prodigal child who never comes back home.

Hmmm. I think I do disagree with the idea that victims and their families should have the most say as to whether a person gets mercy. This seems to place an intolerable burden upon them, esp. if they are Christians. There are bound to be people who say, and victims & families who feel, that they should always plead for mercy as part of showing forgiveness. I think this is misguided of them, but giving them the decision will encourage this sense of an obligation, perhaps even a religious obligation, to ask the governor (or whomever) to show mercy. We've seen things like that many a time--the family of a victim trying to show the world that they are true Christians by asking for clemency. And they might fear that if they didn't do so it would be a poor witness.

Also, even in the giving of mercy there seem to be some more or less objective criteria that can be applied--e.g. whether the person is truly repentant, as you mention. Or the likelihood that showing mercy in this case will encourage others to commit similar crimes. But this can be discerned perhaps better by a third party than by the victims or families, and again, it seems rather hard to burden them with such a prudential decision.

Finally, if it were formalized that the families of a murder victim had a large say-so in the dispensing of mercy, surely this would very quickly blur the distinction between personal vengeance and publically-dispensed justice. As the state decides whom to sentence to death, so the state should decide upon whom to show mercy, in order to make it clear that it is not those who have suffered who are just personally "getting back" at the evildoer.

Some brief comments.

First, on the new natural law theory. This is not so new in all its respects, according to its developers, who hold that the distinctive thesis that so many object to – that the first principles of the natural law are known through practical reason self-evidently, and are not derived from principles of theoretical reason – was also asserted by St. Thomas in q. 94 a. 2 of the Summa, I-II. Since this is what St. Thomas actually says, they seem to me on sound footing. Further, the theory is not averse to metaphysics; it merely holds that the first principles are not known from or in metaphysics. Rather, a metaphysics of the person must take as some of its data the deliverances of practical reason (not all – the arguments against dualism of several basic goods theorists are solidly metaphysical).

But, while I set out the argument as starting from basic goods, that starting point is a bit more wide than the “new natural law” and encompasses a number of natural law thinkers who are less convinced of the self-evident foundations in practical reason view (though I am so convinced.) It encompasses as well the late Pope’s treatment of the foundations of morality in Veritatis Splendor; it wasn’t intended to be an in-house post. Further, not much can be done to sort out what I think are some less than nuanced claims of Ed’s about the new theory (e.g., about the relation between the goods of our human nature and the goods of our nature as adopted children of God) without writing a paper, which I do not propose to do. So I don’t think, in this case, that much is to be gained by arguing about the new natural law theory.

Second on the tradition of the Church. It is not enough just that the permissibility of capital punishment be part of the “tradition.” Rather, it must, inter alia, have been definitively taught by the bishops as a matter of faith to be held by all that capital punishment is permissible. I am not the person to make the historical analysis necessary to assess this, but people whose work I respect have, and it indicates to me that the teaching has not been definitively taught. Moreover, since I think that there are tensions in the tradition (in the broad sense) between the ethics of killing and the dignity of the person, the latter of which I think is more fundamental to the tradition, it seems to me that the tradition can develop. And it would be puzzling to me if, in a papacy which is widely thought to have been opposed to dissent, the late Pope should have not only not chastised those who were arguing for development on this point, but that he should have written in such as way that seemed to actively encourage the new view. Ed says, How, if Chris is right, could a Catholic who supports capital punishment possibly present himself in good conscience for Holy Communion, given that he would in that case be guilty of advocating something intrinsically evil? I wonder how, if Ed is right, an opponent of capital punishment could do so. But it’s quite easy to see how a supporter could, of course, on my view, since I am not claiming that the Church definitively teaches that capital punishment is intrinsically immoral – that would be silly. But I think that capital punishment is intrinsically immoral, and hence that the Church could teach that definitively. That does not mean that supporters of the death penalty are culpably wrong; just wrong. But, finally, I did not frame my post in terms of Catholicism, so I’m not sure this is where the argument should take place either.

Articulating his positive argument, Ed writes: “The basic argument is actually quite simple. If we accept that people can deserve to be punished for their offenses and that a punishment ought to be proportional to the offense, then it follows that the worse the offense is, the worse is the punishment deserved, and that the worst offenders deserve to get the worst punishments. … But a murderer deserves a worse punishment than a bank robber does; and a mass murderer, or a murderer who also rapes and tortures his victims, deserves a greater punishment still. If serial bank robbers, kidnappers, and (according to even most death penalty abolitionists) one-time murderers deserve life in prison, then, worse criminals deserve an even worse punishment. And it would be absurd to deny that at some point that punishment is going to be death.”

I think that this begs the question, though. Since there are worse things than death – e.g., torture plus death; rape plus torture plus death; and so on – it would follow on Ed’s account that some crimes deserve these things. Ed pretty much admits this in later responses. Yet I doubt Ed would want to deny that there are some actions that it is impermissible ever to do. So the principle that worse crimes require worse punishments runs out at the limit of intrinsically impermissible actions, which is precisely what is at issue.

Ed continues: “Chris claims that since life is one of the basic goods that determine “the parameters of the morally permissible,” it can never be legitimate intentionally to deprive someone of his life. Now in my view the argument concerning desert and punishment outlined above suffices to show that Chris’s argument is just a non sequitur.”

Certainly not “just a non sequitur” – although Ed says later in a response that opposition to capital punishment as unjust is incompatible with any serious moral philosophy. This seems a bit inflated, as does a later accusation of the “greatest” inattention to conceptual precision on my part. I may not be the sharpest stick in the woodpile, but really!

More seriously, Ed again: “Punishment consists of depriving someone of a good, and when punishment is deserved it follows that the person has lost any moral claim to that good. And it therefore follows in turn that when what the person deserves is, due to the gravity of his offense, the penalty of death, he has lost any moral claim to his life. So even a “basic good” like life is something a person can in principle legitimately be deprived of. This in no way entails a denial of the “dignity” of the person executed, contrary to what Chris seems to think.
Me again: Taking away someone’s life just is ending their existence as a person, unless one accepts some form of dualism. It is very hard to see how this is compatible with love of persons – which the tradition holds is a moral obligation with respect to all persons -- and respect for their dignity – as Aquinas understood. Hence the bad arguments about descending to the status of beasts: Aquinas recognized that killing someone does seem in a straightforward obvious way to be contrary to their dignity, or their sanctity of life; he answered the objection with a bad argument. I am uncertain what Ed’s argument is against this objection. However, it seems to be this:

“On the contrary, it (capital punishment) affirms his dignity by treating him as a free and responsible individual who must be held accountable for what he does.”

But it is quite possible that in one aspect of punishment one respects human dignity and in another does not. One affirms dignity by punishing, rather than reprogramming. But this does not suffice to show that whatever form of punishment is used itself respects human dignity. And that is what is at issue: does capital punishment respect the dignity of the person it destroys, or the sanctity or sacredness of the life it eliminates.

Best,
CT

Professor Tollefsen advances an interesting argument:

"Since there are worse things than death – e.g., torture plus death; rape plus torture plus death; and so on – it would follow on Ed’s account that some crimes deserve these things. Ed pretty much admits this in later responses. Yet I doubt Ed would want to deny that there are some actions that it is impermissible ever to do. So the principle that worse crimes require worse punishments runs out at the limit of intrinsically impermissible actions, which is precisely what is at issue."

Tollefsen's Feser claims that some crimes deserve death and worse, and he then claims that those crimes require a punishment of death or worse. But Tollefsen's Feser might not be the same as the actual Feser. I imagine Feser would reject the claim: "crime A deserves death and torture, therefore the state is required to punish crime A with death and torture." I think he would say instead "crime A deserves death and torture, but there is moral hazard with the state dispensing torture as a punishment, and in any case the state isn't morally obligated or required to dispense as much punishment as someone deserves, because the state may act mercifully."

Of course, he can speak for himself, but if I have done him any justice, I worry whether he can say that the state may just grant mercy instead of giving someone what he deserves. If someone truly deserves a reward, may the state refrain from giving him the reward? If not, then why may the state refrain from punishing someone who truly deserves punishment? Is it because refraining from giving someone a good thing does not promote any virtue, whereas refraining from giving someone a bad thing does promote the virtue of mercy?

Bobcat,

although, as you say, Ed can speak for himself, it does seem possible that he will go for the moral hazard response. But torture and rape are not wrong because they pose moral hazards, at least not in the tradition of moral thinking to which Ed and I both subscribe (as I understand it) -- they are wrong because of what they do to persons, irrespective of their innocence. And I think it would be peculiar at any rate to attribute the wrong of torture to what it does to the torturer in a way that did not depend upon its doing something wrong to the tortured. It's bad for the torturer because it wrongs the tortured.
Cheers,
CT

Edward,
I'll keep this short, since Chris has already said a lot of what I might have wanted to say (that's a benefit of putting off my response for a few hours). The crux of my criticism is that there are some levels of punishment that should be off limits because they are inhumane. I think that's a pretty widely shared premise (the phrase "I wouldn't wish that on my worst enemy" comes to mind), but your argument for capital punishment seems to contradict it. You do limit the really bad punishments to people who have done really bad things, but you imply that the severity of punishment could theoretically extend all the way up to the level of the tortures of Hell without it crossing a boundary where it becomes something that is wrong to do to any person. I hope you can see why a person might find this frightening, and why it might still be possible for someone who departs from strict proportionality in this way to still retain some capability for genuinely moral evaluation.

Hi Chris,

Thanks for your response. I realize that the new natural law theory does not entirely eschew metaphysics. What I said is that it avoids incorporating the _specific_ metaphysical claims I said were central to the older theory (e.g. realism about form, final causes, and even the existence of God and the soul) into natural law theory itself, as part of what determines the content of morality. Also, it is, of course, controversial whether new natural law theorists properly interpret Aquinas. In any case, you are right to say that this is a big topic that cannot be settled in a blog post, but since you brought up natural law as part of the background of your argument against capital punishment, it seemed to me important for readers to understand why people who both take a natural law approach might take such radically divergent views on this question.

Re: the permissibility of capital punishment being part of the faith, go back and look at Dulles’s article, which gives a good summary. To make just a few points here, first of all, it is obvious that the legitimacy in principle of capital punishment is consistently taught throughout the Bible, surely as authoritative a document as exists in the Church. Second, there are in fact authoritative magisterial documents that affirm its legitimacy in principle, such as the Catechism of St. Pius V and Pope Innocent III’s declaration that among the affirmations that the Waldensian heretics had to make as a condition for coming back into the Church was that “without mortal sin it is possible to exercise a judgment of blood as long as one proceeds to bring punishment not in hatred but in judgment, not incautiously but advisedly.” (In other words, the Waldensians were considered heretical in part _precisely_ for denying the legitimacy in principle of capital punishment.) The new Catechism also explicitly says that it is “the traditional teaching of the Church” that the state can in principle legitimately apply the death penalty, and of course, for a magisterial document to refer to something as “the traditional teaching of the Church” doesn’t just mean that it’s been around for a while, but that its being part of the tradition entails that it has, by virtue of that very fact, a very high degree of authority.

Appeal to the idea of “development” doesn’t help, because a “development” of doctrine, while it can draw out implicit consequences from the tradition, cannot _reverse_ it entirely, as the Church would be doing if she ever taught that capital punishment is intrinsically immoral. Otherwise the concept of “development” becomes a game in which we can justify anything by calling it a “development,” and the whole idea of an infallible teaching authority becomes a joke. (“A fourth member of the Trinity? But that contradicts the Bible, the Councils, and all previous papal teaching!” “Don’t worry I’m not contradicting anything, just ‘developing doctrine.’” “Oh, that’s OK then…”)

You say that there are tensions in the tradition between “the ethics of killing and the dignity of the person.” I deny that there are any tensions at all. Certainly no one ever thought there were tensions in the first two millennia of Church history, which is a pretty long time for such a serious contradiction to go unnoticed, if it were really there at all. There only seem to be “tensions” if you insist on interpreting the phrase “the dignity of the person” in the sort of new natural law sense you expressed in your original post. That is to say, there are only “tensions” if you insist on reading it in a way no one in the history of the Church read it until a few years ago. And if there really are tensions between the traditional teaching and this new theory, my inclination is to say that it is the new theory that is wrong, not the tradition.

Re: John Paul II as someone who really cracked down hard on dissent, surely that’s a media fable – otherwise Hans Küng (to take just one of many examples) would be selling pencils somewhere instead of continuing to teach, write, and lecture as a member in good standing of the Church (even while constantly badmouthing it) after getting what amounted to a slap on the wrist decades ago. And I know that you are not claiming that the Church teaches that capital punishment is intrinsically immoral. But the problem is that the Church explicitly teaches now, and has always taught, that it is _not_ intrinsically immoral, and you say that it _is_. Moreover, you’ve at least strongly implied that it is precisely your Catholicism that leads you to this “liberal and progressive” and non-“conservative” view, so it is surely legitimate for me to ask how you can make all of this consistent. From your very first post on the blog, and in subsequent posts, you’ve said that the issues you wanted to explore (including capital punishment) involved elucidating what the relationship is between taking a Catholic view of things and being conservative vs. being liberal, and you have often suggested that Catholic teaching is in many ways more liberal than conservative. How can this fail to be relevant to what you wrote about capital punishment (especially since you explicitly brought Christianity, Aquinas, the Pope, and natural law theory into the discussion in your post on the subject)?

For my part, I do not claim that a Catholic has to support capital punishment full stop, only that a Catholic has to support its in-principle legitimacy. It is perfectly open to a Catholic to think – as Pope John Paul II did – both that it is legitimate in principle, but morally hazardous and better to avoid in practice, and in that sense be opposed to capital punishment. So there is no mystery about how on my view an anti-capital punishment Catholic could present himself in good conscience for Holy Communion.

You say “Yet I doubt Ed would want to deny that there are some actions that it is impermissible ever to do” (where I take it that by “actions” you mean specifically “actions of a retributive nature”). I don’t necessarily deny that, but the question is the _reason_ why certain actions are always impermissible. I think that it would be wrong to have a system that would allow us e.g. to torture Uday Hussein for a month as a matter of retributive justice, but I also think it would be wrong to deny that Uday Hussein, who was about as evil and cruel a man as can be imagined, would deserve such treatment if he got it. The reason both these things can be true is, as I have suggested, that meting out certain punishments is too potentially corrupting on the person meting them out. There might even be a moral requirement here to dispense some measure of mercy by not giving the offender exactly what he deserves when what he deserves is just too horrible to contemplate doing to him. But even if so, that would not undermine the claim that he deserves it, but rather affirm it.

And again, if you deny that Uday Hussein would in fact be “getting what he deserved” if he was so tortured (granting that this shouldn’t in fact happen), then you need to come up with a way of squaring this with the principles of desert and proportional punishment. And my claim was that there is no way to do so, and that since these principles are central to morality as we understand it, no serious moral philosophy can plausibly do without them. (This latter claim was therefore not a gratuitous or conceptually sloppy parting shot, but a serious point. Critics of capital punishment, it seems to me, typically fail even to try to provide an alternative analysis of desert and punishment to replace the traditional one they are implicitly rejecting.)

You also say that “Taking away someone’s life just is ending their existence as a person, unless one accepts some form of dualism. It is very hard to see how this is compatible with love of persons – which the tradition holds is a moral obligation with respect to all persons -- and respect for their dignity.” First of all, since on the traditional view persons have immortal souls, you are only _temporarily_ ending their existence as persons, not ending it full stop; second of all, it is, again, “hard to see” this only if you insist on interpreting the “dignity” and “love” of persons in the new sense you favor, rather than the traditional sense, which saw no contradiction between respecting and loving a person on the one hand, and punishing him when he deserves it on the other. (Again, Christ threatens impenitent sinners with eternal damnation, a fate far worse than death; does this entail that he doesn’t love them or respect their dignity?)

In response to the very serious points Blar raises, you write: "I have claimed that if we accept the principle that people deserve to be punished for the evil they do, and that the punishment ought to be proportional to the offense, then it follows that capital punishment can be a legitimate way of exacting justice for some offenses. Where exactly is there a flaw in this argument?"

Just for the record, this argument is in fact completely fallacious. The fallacy should be obvious to anyone who grasps the notion of proportionality. The claim that punishment should be proportional to the offence entails that greater offenses should be punished with greater punishments, and lesser offences with lesser punishments. This is a very uncontroversial principle and does not in any way entail that some crimes ought to be punished by death. In fact it does not entail anything about what the gravest morally permissible form of punishment ought to be.

To conclude that capital punishment can be morally permissible from the premise that the punishment ought to be proportional to the offence is obviously fallacious.

Dear "Comment":

Quite obviously, the sentence you quote is intended merely as a summary of the argument spelled out in more detail in the text, and not as a deductively valid syllogism all by itself. Try to apply just a minimal degree of charity in interpreting what I said, huh?

The point is that given the principles alluded to in the quoted sentence, together with the fact that some crimes -- mass murder, murder plus torture, etc. (or any even worse crime you care to take) -- seem clearly out of proportion to merely a life sentence, it plausibly follows that at least with the very worst crimes, only a death sentence would be proportional to the offense. This is the argument I told Blar he ought to address instead of just calling it "frightening." And the specific problem I say exists for the person who says that capital punishment can never be appropriate _even in principle_ is explaining how this can be squared with the principles of desert and proportionality together with the fact that certain crimes are clearly far worse in their significance than a mere life sentence is. If Blar's objection is a "serious problem" for my view, my objection to Blar is surely a serious problem for his, and he ought to try to address it instead of just expressing outrage.

Dr. Feser has acknowledged the threat of moral hazards several times, but I am waiting for some explanations of where the limits should be. Say we accept the principles of proportionality and desert, what are the criteria for realizing a corrupting consequence to society?

As for alternatives to capital punishment, imprisonment is all that society needs to maintain the social order. The state's priority is protection of the general public, not private retribution.

Step 2:

The short answer is that the maximum penalty for a crime should be death -- i.e. that torture, say, should never be used.

But I am still waiting for an answer to my question to my critics, namely how they can consistently deny that capital punishment can _ever_ be legitimate even _in principle_ while also accepting that people deserve to be punished for their offenses, that the punishment ought to fit the crime, and that there are some offenses which massively outweigh in their gravity a mere life sentence in prison.

No answer has been forthcoming. All I have been told is that my view is "frightening," or that it is against human dignity, which simply begs the question.

I claim that my view can in fact account for all our moral intuitions. It can account for the intuition of most people that if e.g. Uday Hussein were to have been tortured before he died, he would in some sense have deserved it, given what he did while he was alive; and it can also account for our intuition that it would nevertheless have been wrong for us to torture him. And I have now given, in my answers to various comments, three reasons why my view doesn't entail that we should torture such people:

1. Even though they would deserve such torture, the torture would be morally hazardous to the person doing it and to society at large.

2. The principle of proportionality doesn't strictly require that an offender get exactly the same punishment, but only one comparable in gravity, which at least partially mitigates the seeming harshness of the principle.

3. There may well be a moral requirement on us to show mercy even to very brutal offenders; and, I should add, this requirment may even somehow derive from their dignity as persons. But since it would be a duty of _mercy_, not justice, it would be fully consistent with saying that they _deserve_ a brutal penalty even if they shouldn't get it.

So, again, my view can explain all our intuitions. But the view I'm criticizing cannot -- at least, no one here has yet tried to do so. That seems to me to neutralize the "argument" from the "frighteningness" of my view.

Finally, I would deny that "imprisonment is all that society needs to maintain the social order," because part of the social order is a sense of the horrific nature of murder and the like and the evil of the people who commit such cries, and nothing less than capital punishment can convey this. In any case, my argument isn't about what will preserve social order, but rather about what will secure retributive justice. And since the state is the agency that the natural law calls forth to impose the penalty, it isn't "private retribution."

If we are the state, or the state is our creation, whence comes the right of the state to imprison? Do I ever have the right to lock another human being in a cell against his will? If I lack any such right, how can I, either individually or in collaboration with fellow citizens, obtain such a right?

Surely imprisonment involves some diminution of personal dignity. How then can it not be wrong to intend directly to deprive another human being of his freedom?

Prof. Feser,

Could you go into a little more detail about what makes a particular action morally hazardous? For example, when I was in the Marines, I had the opportunity to discuss the act of killing with many individuals who had been in combat and had killed enemy combatants. All of them told me that they had suffered intense regret and distress as a consequence; several had had to receive counseling in order to continue to perform their duties. I realize that these sorts of anecdotal references can not establish a principle, but suppose that they did represent a general principle. Would these sorts of psychological problems qualify killing as a morally hazardous act? And if so, would that then entail the necessity of abolishing the death penalty?

Regards,
Christopher

Hi Christopher,

You raise a good question. I would say that all killing is morally hazardous to some extent or other, and of course epsecially in war. This is not because it is "against human dignity" to shoot e.g. a bin Ladenist who is sniping at you, but because especially when the killing occurs on a large scale and in the fog of war it is just psychologically hard to keep the distinction between those who are basically guilty and those who are basically innocent in mind, or even always to know who is who. Inevitably, one gets hardened and practically has to operate day to day in a manner that involves seeing the enemy simply _as_ "the enemy" full stop, and to avoid thinking too much about the various degrees of moral culpability among the specific people one is fighting, which simply cannot be known. And yet war is sometimes necessary, so it's a moral hazard we have to put up with -- just as we have to put up with all sorts of other moral hazards, e.g. in police work or in any other area where good people have to deal with corrupt or evil people.

If anything, the death penalty involves much less of a moral hazard than war, because there is, or at least can be in many cases, no serious doubt about who is guilty. But I want to make it clear that my main point was not to debate whether capital punishment is in fact appropriate, but rather whether it _can_ be in principle. There are some serious arguments for abolishing it, though I happen not to agree with any of them. But what I regard as an unserious argument -- indeed, for reasons I've tried to make clear, what I regard as a morally frivolous, muddle-headed, and indeed a morally dangerous argument -- is the suggestion that capital punishment is _intrinsically_ unjust, that it necessarily amounts to "murder," and that even the worst murderers and tyrants "don't deserve" to die.

Ed,
You write: "what I regard as a morally frivolous, muddle-headed, and indeed a morally dangerous argument -- is the suggestion that capital punishment is _intrinsically_ unjust."

I am still not sure what advantage is to be gained by these descriptions over simply saying that you think the argument is *wrong*. But a point of clarification. What I argued is that capital punishment is intirinsically *wrong*, not intrinsically *unjust*.

The scope of the former is wider. Consider a man on an uninhabited island with no family or dependents and suffering from a painful disease. It is not unjust for him to kill himself -- both Thomas and Aristotle think it impossible to commit and injustice against yourself, since you act according to your own will; and he commits no injsutice against anyone else.

Why, then, is his action wrong? On my view, it is wrong because he intentionally acts against the good of life. This can reasonably be glossed by saying that he offends against his own dignity, or the inviolability of the human person. The same principle provides a ground for saying that capital punishment, when it involves intentional taking of life, is intrinsically wrong -- even if one were to concede that it is not unjust.

So I wonder what your view about the island case is -- why is it wrong, but not unjust, for the man to commit suicide?

Best,
CT

I think that Comment raises an important point, and Professor Feser's response glosses over it. I am not sure how a crime and a punishment are supposed to be comparable (the standard Prof. Feser acknowledges as the basis for proportionality), even in 'gravity.' Their 'units' are different: a punishment's severity is measured in terms of the extent of the setback suffered by the person punished; the crime's severity is measured in terms of the blameworthiness of the punished, which is a function of the intention, the circumstances, the amount of harm intended (or negligently not avoided), and so forth. This fact is the basis for the stupidity of lex talionis as a general principle of punishment, but it seems equally to apply to any view that wants to make punishment and crime 'comparable.'

Proportionality can still be a requirement, but it is hard to see what that amounts to other than the view that graver crimes merit graver punishments, which is compatible with an extraordinarily wide range of punishments (some of which could be much less, or more, severe than seems appropriate).

Professor Feser writes, in response to Step 2,

"The short answer is that the maximum penalty for a crime should be death -- i.e. that torture, say, should never be used."

"But I am still waiting for an answer to my question to my critics, namely how they can consistently deny that capital punishment can _ever_ be legitimate even _in principle_ while also accepting that people deserve to be punished for their offenses, that the punishment ought to fit the crime, and that there are some offenses which massively outweigh in their gravity a mere life sentence in prison."

Isn't the short answer to this: "the maximum penalty for a crime should be life imprisonment -- i.e. that capital punishment, say, should never be used"?

You might respond, "but my critics cannot say this because they admit that there are some offenses that massively outweigh in their gravity a mere life sentence in prison." But aren't there some crimes, on your view, that massively outweigh in their gravity a mere death sentence? E.g., surely Stalin committed crimes that massively outweigh, in their wrongness, the right that would be done by executing him?

Chris,

In fact Thomas does think suicide is unjust, and in two ways. First, suicide is a violation of what we owe to God: "because life is God's gift to man, and is subject to His power, Who kills and makes to live. Hence whoever takes his own life, sins against God, even as he who kills another's slave, sins against that slave's master, and as he who usurps to himself judgment of a matter not entrusted to him." Second, suicide is unjust because it harms the community of which one is a part: "because every part, as such, belongs to the whole. Now every man is part of the community, and so, as such, he belongs to the community. Hence by killing himself he injures the community, as the Philosopher declares (Ethic. v, 11)."

No man is an island, even if he happens to be stranded on one. I think it's plausible to hold that a stranded castaway still harms his community by committing suicide. Community membership includes more than physical proximity.

Finally, Thomas also holds that suicide sins against charity: "because everything naturally loves itself, the result being that everything naturally keeps itself in being, and resists corruptions so far as it can. Wherefore suicide is contrary to the inclination of nature, and to charity whereby every man should love himself. Hence suicide is always a mortal sin, as being contrary to the natural law and to charity."

Even if you cash out the love one owes to oneself in terms of respecting the basic good of life, it doesn't follow that life can never be taken away by a legitimate authority. One can never be a judge in one's own case, but God can, and so can the proper authorities of the community: "One who exercises public authority may lawfully put to death an evil-doer, since he can pass judgment on him. But no man is judge of himself. Wherefore it is not lawful for one who exercises public authority to put himself to death for any sin whatever: although he may lawfully commit himself to the judgment of others" [ST IIa IIae q. 64].

MOB

Dear Ed (if I am be so bold as to call you Ed),

Thanks for your courageous post, whose argument I am pretty largely in sympathy with. Here is a further consideration:

One of the arguments against capital punishment that comes up in many different forms is this: granting that wrongdoing deserves punishment; and granting that the punishment in some sense must fit the crime---granting all this, it still does not necessarily follow that capital punishment is ever the punishment that fits the crime.

In one sense, this is right: there is no absolute LOGICAL necessity mandating that the death penalty be the punishment that fits the crime, no matter how heinous. Of course, there is no such logical necessity connecting any crime with any punishment, or crime and punishment in general. The crime-punishment connection in general, and the crime-capital punishment connection in particular, belongs to the realm of moral necessity, or, if you like, of fittingness ("convenientia" as the Scholastics would have said). It's a question of appropriateness.

The question, then, is this: is there is a kind of moral necessity, a kind of fittingness that certain deeds be punished with the death of the perpetrator?

I realize that these terms may seem vague and that, in any event, it is not easy on the basis of a notion like fittingness to make an airtight case that death can at least sometimes be the punishment that fits the crime. Nevertheless, it is worth at least pondering why there is, and I assume has always been, a pretty widespread intuition that, in certain cases, death is the (only) fitting punishment for a crime---however much individual people and societies have disagreed about which cases those are.

If we rule out historicist explanations (a big if, I know), and if we do not hastily identify the intuition I am talking about with vengefulness, then what is/has been going on when people have/have had it?

Now, it is no good to answer thus: "well, those who have this intuition just happen to FEEL that capital punishment is the (only) penalty that fits the crime in certain circumstances." For this sort of response just begs the question: WHY do people feel this way? Again, it's a matter of trying to give an account of the logos that's buried in a certain common moral intuition.

I'm not sure of the answer to the question posed, although I have some very, very inchoate ideas, which I will not burden you with here. My point for now is just that I think that, before capital punishment opponents begin to mount a refutation of the pro-capital punishment argument, they need to ponder the weight and meaning of the intution that I have been talking about: why have so many people and cultures felt that death (alone) is the appropriate response to certain crimes?

Perhaps one might venture to say to some anti-capital punishment proponents, in the words of Anselm in Cur Deus Homo, "nondum considerasti ponderis peccati." Of course, they might retort: "nondum considerasti ponderis dignitatis humanae," but then the counter-question becomes (as you have argued) whether or not the death-penalty intuition that I have mentioned amounts in fact to a forgetfulness or denial of human dignity (and what IS human dignity, anyway?---another philosophical question that has to be unpacked!)

Cordially,

Adrian

Thanks MOB,

I don't think I claimed that Thomas denied the injustice of (most) suicide. I put my man on an island precisely to avoid the claim of injustice against others; on God, see below. The article you cite does, however, contain my basic point: that the wrong of some killing is not exclusively understood in terms of justice. To say that some killing (such as capital punishment) is not unjust does not seem therefore to exhaust the possibilities: it might nevertheless be contrary to charity.

Thomas's immediately subsequent claim about public authorites relies upon his previous discussion, and does not itself seem like an adequate argument, since it presupposes the legitimacy of public execution. And I think his argument for that (which I think is not the same as Ed's argument) is not very convincing.

Whether a person on an uninhabited island commits injustice against others in killing himself does not seem like something Thomas was thinking about in saying that the suicide committs injustice against the community. And the claim that killing encraohes upon what is God's only supports capital punishment if you accept something like the theory of the state that Rob Koons argued for (or Aquinas's, which is again I think slightly different from Rob's). I think it better supports my claim about capital punishment. If human life is God's, then we should render unto Caesar what is his, and to God what is God's.

Thanks for your comment,
CT

I would like to raise a point concerning the difference between someone deserving something and someone getting what he deserves.

I would agree that in some cases death is deserved, or at least that it wouldn’t be wrong or objectionable for a person to die for what he did. Further, I agree with Mr. Feser concerning the centrality of desert in systems of morality. There is an important connection between desert and responsibility, and between responsibility and moral blameworthiness even if it is difficult trace the logical contours precisely.

But, morality is not a self-executing (no pun intended) system. People do bad things all the time without consequence, and good acts often go unrewarded. Whatever the status of the moral order, violations don’t, on their own, bring about an equal and opposite reaction. (Though for a compelling argument that some reactions are brought about on a personal level at least see Dostoyevsky, _Crime and Punishment_.)

In order for one to get what he deserves there has to be some mechanism to give him what he deserves. We have institutionalized a generally fair and impartial system of justice that carries out the death sentence. I am prepared to accept that in principle and in the majority of applications this system functions well and creates no moral problems involving desert and punishment.

However, this system is still something separate and distinct from the moral laws that it implements. That separation gives rise to two potential concerns, one of which has been mentioned and the other which, though not mentioned, is a more common objection to the death penalty.

First, since the system requires people to carry out the sentence, there is the risk (I assume that this is the moral hazard that others have spoken of) that those people will become desensitized, or that society itself will become desensitized to the loss of life in general and perhaps to the particulars of state sponsored execution. This risk would certainly grow if proportionality were allowed to exceed death and our executioners became torturers as well.

Second, by institutionalizing the death penalty there is a risk, common to all human institutions, of fallibility. I mean a factual fallibility (DNA mix up, witness error, etc.) as opposed to differing conceptions of morality. Safeguards are in place and, no doubt, the vast majority of those put to death deserve it. Nevertheless, it seems likely that at some point a fatal mistake will be, or has already been made.

Since I believe that both objections can be overcome, however, I believe that the death penalty is morally permissible.

As someone new to this forum I would like to say how much I appreciate the excellent postings I have read so far.

Many thanks for everyone's fine comments. Some brief replies:

Chris:

The reason I use such language is because I believe that nothing less captures (what I take to be) the gravity of the error I am criticizing (viz. that capital punishment is _inherently_ immoral). For reasons I have given, I believe that in its implications it undermines the very possibility of moral evaluation, and if so then it is no _mere_ error. It is certainly appropriate to suggest to people one thinks are committing a serious error that they may unwittingly be traveling down a road that has some nasty consequences.

Furthermore, the view I am criticizing is usually -- though, I hasten to emphasize, not in your case -- presented with a combination of such extreme self-righteousness and such an appalling lack of rigor and careful argumentation, that I believe it is perfectly appropriate to criticize people guilty of this for being frivolous and muddle-headed.

Re: your other point, MOB took the words right out of my mouth. I would also add that if you deny that a murderer, say, deserves to be executed (as you seem to) then you are of course implying that executing him would be doing something to him that he doesn't deserve. But if someone gets a punishment that he doesn't deserve, then he is suffering an injustice. Hence your view does seem to entail that capital punishment is unjust, and not just wrong. Also, your view seems to imply that the murderer does not lose his right to life. That implies that to kill him violates his rights, and is thus an injustice.

Anon:

You say that "a punishment's severity is measured in terms of the extent of the setback suffered by the person punished; the crime's severity is measured in terms of the blameworthiness of the punished, which is a function of the intention, the circumstances, the amount of harm intended (or negligently not avoided), and so forth."

True, we don't punish someone guilty of involuntary homicide the same way we punish a murderer. In that sense intention is relevant to the gravity of the offense. But what the principle of proportionality need be taken to imply is not necessarily that you deserve the same degree of harm you in fact caused, or even the same degree of harm you intended to cause, but rather the same degree of harm you both intended to cause and did in fact cause. Understood in this way, the crime and the penalty are perfectly comparable.

Bobcat:

Of course there are crimes whose gravity outweighs a death sentence. But please keep in mind the point -- which I have stressed over and over -- that I am NOT saying that criminals MUST always get a penalty as serious as their offense, but only that it is not unjust if we do give them such a penalty (e.g. death). So what you need to show is not that we can sometimes legitimately give a murderer less than death, or less than some worse punishment than death -- I have already acknowledged this several times -- but rather that we can never justifiably give him death, even in principle. And you need to show this in a way that is consistent with the other claims I've mentioned (about desert, proportionalty, etc.) You have come nowhere near to doing this.

Adrian and Alex T.:

Thanks for your interesting comments, with which I more or less agree.

Dr. Feser-
"The question at hand is the question of what we deserve as a matter of justice."
As a matter of principle, an eye for an eye does fit with our moral intuitions. But moral intuitions are notoriously vulnerable to time and place, to the point of seeming arbitrary. Excessive state punishment (dismemberment, stoning) is permissible in Islamic law today. The medieval period included gratuitous use of torture to obtain confessions before being burned alive. Last but not least, the Roman Empire used crucifixion as a brutal display to warn its potential enemies.

The more important question is does capital punishment truly act as a deterrent. If not, we should abandon it immediately. If so, we should continue to use it, albeit carefully.

Step2,

From what I know, capital punishment does act as a deterrent. According to Cass Sunstein, every state execution deters the murder of 18 other people. Still, we don't yet know whether it's a greater deterrent than life imprisonment. I assume the question of its relative deterrent efficacy is what you're after.

Ed,

how's this for a definition of torture?

". . . the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

It's from Article 1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.

http://www.hrweb.org/legal/cat.html

This Convention has been acceded to by the Holy See in 2002.

http://www.holyseemission.org/26jun2002.html

Note that the convention is not only against torture, but also against "cruel, inhuman, or degrading treatment or punishment".

And it says

"2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture."

Prof. Feser,

Thanks for your writing on this, which has been a lot of fun to read, and even more fun to interact with.

I haven't exactly been trying to do anything so much as understand Chris's and your arguments. I'm an agnostic on the death penalty, and so I'm trying to see where my intuition ends up.

Let me try to meet your challenge. I'll try to show that we can never give a murderer--or anyone, for that matter--the death penalty. And I'll try to show this in a way consistent with your other claims. The 'other claims' are: (1) Retributivism--"people can deserve to be punished for their offenses"; (2) Proportionality: "a punishment ought to be proportional to the offense"; from (1) and (2) follows (3) Perpetually Increasing Punishment, or PIP: "the worse the offense is, the worse is the punishment deserved, and the worst offenders deserve to get the worst punishments."

Now, I think that, even if someone accepts (1)-(3), there are punishments that he can, in principle, rule out. For example, for some murderer, his execution might not be as bad for him as the rape and execution of his family members. Killing and raping his family members might be the very worst thing one could do to him, in terms of the intensity of the suffering he experiences. And yet, I think that I could accept (1)-(3) and still reject the claim that murdering a guilty person's innocent family members is always ruled, for a simple reason: because they didn't do anything, and so we can't treat them as mere means to the end of punishing him.

I think you'll agree with that. Now, perhaps a similar argument could be used against ever permitting torture as a punishment. Unfortunately, the only argument I can think of against torture--say, sticking bamboo shoots under fingernails, raping someone, etc.--is that there seems something inherently, well, evil about it. It's hard for me to imagine someone torturing someone else without delighting in it or without becoming ruined as a person. This is the moral hazard you've been talking about. But one thing strikes me as weird about moral hazard: if there's nothing intrinsically wrong with torture, why would we have to worry about moral hazard? One answer is that torturers might misunderstand the retributive purposes of the torture they're perpetrating. And I think this is, at the end of the day, what's going on: my guess is that torturers cannot successfully torture someone without thinking of him as a non-person. If that's true, then that's a limitation of the torturer, not of torture as a punishment. Similarly, it could be that executioners cannot execute someone without becoming corrupt, because in order to kill someone who is posing you no threat, and over whom you have complete control--you have to think of him as a non-person, which is morally impermissible.

So, there is no in-principle reason I can think of against killing, or even torturing in the most excruciating ways imaginable, someone has perpetrated a capital offense. So I'll have to concede the argument to you.

Odd that an argument based on the "traditional teachings of the Catholic Church" finds no basis in the teachings of Jesus himself. I strongly suspect Jesus would find capital punishment repellent and any Church official that holds otherwise to be misguided. It also violates the 6th Commandment.

Typical modern religious argument that conveniently ignores the basis of the religion.

wa writes: "Odd that an argument based on the 'traditional teachings of the Catholic Church' finds no basis in the teachings of Jesus himself."

It would be helpful if you would at least try to make some effort to indicate where exactly what I say contradicts "the teachings of Jesus himself." As it is, you've merely made an ungrounded assertion, not an argument.

And please don't cite "turn the other cheek" as if it settled anything, because there is nothing in that saying that implies that we ought not to punish criminals by giving them what they deserve, unless you want to say that Jesus wants us not only to refrain from executing murderers, but also to refrain from jailing thieves and fining tax cheats.

In any case, for 2,000 years Christians have consistently interpreted Christ's teachings as being compatible with capital punishment. Those who think they see a rejection of capital punishment in those teachings are thus reading their liberalism into 2,000 year old texts, rather than understanding them the way they would have been understood at the time they were written and have always been understood since.

Re: your statement that "It also violates the 6th Commandment," you quite obviously don't know what you are talking about, since what the commandment prohibits is murder, i.e. _unjust_ killing, not _all_ killing. (You need to go by the original Hebrew, not the English translation.) This should be obvious from the fact that in the same text in which that commandment is stated, God also commands the death penalty for various offenses. Obviously, then, the commandment is not intended to rule out all killing.

Finally, re: your reference to what I said as a "typical modern religious argument that conveniently ignores the basis of the religion," my argument is very far from being "modern." It is nothing but a re-statement of what has been the mainstream view about this matter for 2,000 years within Christianity, Catholic and otherwise. It is only very recently that the attitude has arisen that Jesus's teachings are somehow incompatible with capital punishment, as people have begun to re-interpret what Christ said in terms of their liberal theological premises (selectuvely, that is: such people usually just ignore or try to explain away those of Christ's words they don't like, e.g. his very stern words regarding sexual morality and his warnings about eternal damnation for impenitent sinners).

In short, it is _your_ view that is modern and out of harmony with "the basis of the religion," not mine.

"for 2,000 years Christians have consistently interpreted Christ's teachings as being compatible with capital punishment."

I guess they haven't learned anything in all that time. They're still right where Christ left them (and following the behaviors he implored them to turn away from).

"the commandment prohibits is murder, i.e. _unjust_ killing, not _all_ killing. (You need to go by the original Hebrew, not the English translation.)"

Yes, I'm quite aware of the original Hebrew. If you have a man under your complete and unquestioned control (i.e., in one of our lovely prisons), then to kill him IS murder. The sense of the Hebrew is to justify defensive killing (including military action in a justified war). As to the command of God to put to death those guilty of certain crimes, a nomadic people in the desert don't have the luxury of sturdy prisons and a convicted murderer will always be a potential menace. The same text lists cursing ones parents as meriting death as well. Should we follow that one too?

Your entire argument is based on the fact that Christians haven't changed their behavior in 2000 years so it must be ok. Well, certain primitive tribes have been cannibals for 2000 years, I guess they're right too? Maybe it's time to grow up.

wai writes: "I guess they haven't learned anything in all that time. They're still right where Christ left them (and following the behaviors he implored them to turn away from)."

Again with the undefended assertions. How are they "following the behaviors he implored them to turn away from"? If it is capital punishment you have in mind, you have yet to give any evidence that it is incompatible with his teaching. Presumably you have such evidence, otherwise you wouldn't keep shooting your mouth off like this, right? So let's hear it already.

"The sense of the Hebrew is to justify defensive killing (including military action in a justified war)."

It is not limited to that, as is, again, amply proved by the fact that the very same text commands the death penalty for various offenses, as you admit when you say:

"As to the command of God to put to death those guilty of certain crimes, a nomadic people in the desert don't have the luxury of sturdy prisons and a convicted murderer will always be a potential menace. The same text lists cursing ones parents as meriting death as well. Should we follow that one too?"

Now you are changing the subject. What is relevant to the point I was making is not _why_ they had the death penalty or what offenses they had it for, but the fact that they had it at all. The reason is that the fact that they had it at all shows that "You shall not murder" was not intended to be understood in a way that rules out capital punishment. The reasons they had it, or whether they should have had it for cursing one's parents, are different questions that I was not addressing.

"Your entire argument is based on the fact that Christians haven't changed their behavior in 2000 years so it must be ok."

How ridiculous. Of course that is not my argument. First of all, what you say is just a silly caricature of the Catholic view of authority and tradition. If you want to reject that view, fine, but at least try to represent it fairly and give some arguments against it rather than attacking straw men. Secondly, in the second half of my post I gave arguments in defense of capital punishment that have nothing to do with theology and stand on their own.

"Maybe it's time to grow up."

Yes, so why don't you? If someone gives arguments in defense of a certain view that you disagree with, as I have done, the adult thing to do is to try to meet those arguments head on and answer them, not toss off a few snotty remarks and sweeping undefended assertions as you have done.

Ed, I think you are frothing a bit too much. You have completely ignored my point, to wit: I see a case made on the basis of Popes and pundits. Nowhere do I see "As Jesus said...". It's not very helpful to complain because I haven't proven a negative (a fool's errand indeed). In legal terms, your Christian basis for capital punishment is entirely "hearsay" and I can (just as smugly as you do) insist you do better. But I've at least given you a doable task. Find me a single instance from the source that supports your argument. WWJD?

"turn the other cheek" will do very nicely for my argument because the application of that would indeed "refrain from jailing thieves and fining tax cheats." Instead, it would press you to understand why they behave as they do and to help them stop their crimes. Jesus didn't call for the arrest of the moneychangers, he only wanted them to stop conducting business in the temple (blasphemy to him, a very serious crime) and so he cast them out. He didn't beat them or fine them, he just made them stop. Then there was that little matter of "he who is without sin..."

I will repeat my en passant point as well: apparently we haven't come very far in 2000 years.

wai:

First of all, and to repeat, my case was not made simply on the basis of what popes have said, etc. It was also made on the basis of free standing philosophical arguments.

Second, part of the point of my original post was to address the question of what view about capital punishment is best supported by Catholicism, since that is a question Chris Tollefsen's posts have raised. Since, according to Catholic theology, it is highly relevant to that question what the popes and Catholic tradition have taught on the matter, it is hardly illegitimate of me to emphasize it. If you don't like the fact that Catholic theology regards these things as important, well, fine, but that's another matter and not germane to the point of the post. Don't criticize what I wrote for failing to do somnething it wasn't intended to do, i.e. prove the legitimacy of capital punishment from Jesus's statements alone.

Third, insisting that I prove this from Jesus's statements alone is a ridiculous request in any case. The fact that we don't have a record of his making a statement explicitly and directly supporting it proves nothing. (We also don't know of any statements from Jesus explicitly endorsing adoption, say, or explicitly condemning rape. Does that mean that adopting orphans is wrong and that rape is OK?)

On the other hand, we do know that when the good thief told the bad one that their punishment (i.e. death) was deserved while Jesus's punishment was not, Jesus commended him. He didn't say to the good thief: "No no, don't say that, it's an affront to your human dignity!" So there's your "single instance."

Furthermore, we know that the Catholic tradition, handed on by the apostles, has always involved an acceptance of the inherent justice of capital punishment, and that St. Paul indicates as much in the letter to the Romans. Since that tradition is continuous all the way back to the beginning, and the people at the beginning were in a far better position to know what Jesus would have approved of than are contemporary readers who spin out novel interpretations of the text a priori to suit their novel moral doctrines, that alone gives us good reason to think that Jesus would not have condemned capital punishment as intrinsically unjust. Now you might reject the claim that we ought to interpret the text in the light of this tradition, but in that case you are assuming an alternative exegetical approach which needs to be defending and not merely assumed.

Fourth, you are being disingenuous in now claiming that I have "ignored your point." Before you said that Jesus would find capital punishment "repellent" and implied that Christians who supported it were "following the behaviors he implored them to turn away from." I pointed out that you gave no evidence in support of these assertions -- I wasn't asking you to "prove a negative," but to prove a positive, i.e. to prove that Jesus really taught anything that was inconsistent with support for capital punishment, as you implied that he did. Now you act as if you weren't really making any asserions at all but merely challenging me to prove the legitimacy of capital punishment from Jesus's words alone.

Fifth, your interpretation of "turn the other cheek" is, frankly, ridiculous. I give you a reductio ad absurdum of your view -- i.e. that it would imply that we shouldn't put thieves in jail -- and you happily endorse the absurdity!

No one in the history of Christianity ever interpreted it as having the bizarre therapeutic meaning you think it has. That's contemporary pop psychology speaking, not Christ. It has always been understood that Jesus's teaching was often put in stark and exaggerated terms in order to make a point. (He also said that if your eye causes you to sin you should pluck it out and that some people make themselves euncuhs for the sake of the kingdom of heaven. Do you think he really meant that we should pull our eyes out of their sockets and castrate ourselves?)

In this case his meaning, as the Christian tradition has always undertood, was that we should personally work and pray for the repentance and reconciliation of our enemies and not simply condemn them. He was not making a statement about the criminal justice system, much less saying that people shouldn't be punished for their wrongdoing. (After all, he also said that sinners who do not ultimately repent will suffer eternal damnation, which is far worse than death and very far from the touchy-feely sentiments you seem to want to attribute to him.)

Finally, re: my "frothing," give me a break. If you can't handle being called on your snide remarks, don't make them in the first place.

"No one in the history of Christianity ever interpreted it as having the bizarre therapeutic meaning you think it has."

How very sad. I didn't realize you knew them all.

I do agree that those who are culpable for murder deserve death. However, I also believe this is true of all who are culpable for any mortal sin whatsoever. This seems to be a clear part of the Christian tradition. Nonetheless, it does not follow that the state should or even may execute all mortal sinners. For although the primary reason for punishment is retribution, nonetheless considerations of other factors may give a state good, even conclusive, reason to leave the deserved capital punishment to God in various, and maybe even all, cases.

I think there is something to the idea that someone who is himself deserving of death should not be an executioner, unless this is necessary for the protection of the innocent. This claim fits well with the story of the woman caught in adultery. Jesus does not dispute that she deserves death, but he does seem to dispute the right of sinful people to impose that punishment. (The protection of the innocent does not come up in this case.) We would, I think, find it problematic if a murderer after repenting (and somehow getting off, say for good behavior) turned into a hanging judge.

If this is right, then capital punishment may only be imposed when it is necessary to protect the innocent. However, in Western societies these days, capital punishment is very rarely if ever needed to protect the innocent. Strict solitary confinement for life would be sufficient to protect the innocent in almost all cases (an exception might be mobsters who might still be able to sneak messages out to hitmen; another potential exception is traitors on a battlefield).